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2015 DIGILAW 820 (CAL)

Rivu Dutta v. State of West Bengal

2015-09-24

ASHA ARORA, NISHITA MHATRE

body2015
JUDGMENT : Nishita Mhatre, J. The appellants have all participated in the examination conducted for appointment to the post of Civil Judge (Junior Division)/Judicial Magistrate in the West Bengal Judicial Service. All except the appellants in FMA No. 4418 of 2014, AST No. 38 of 2014, AST No. 46 of 2014 and AST No. 47 of 2014 were selected. However, none of them were issued appointment orders which prompted them to file writ petitions under Article 226 of the Constitution of India. The writ petitions were dismissed on account of the delay and laches in filing the same. Aggrieved by the decision of the learned single judge the appellants have preferred the present appeals. 2. The issues agitated before us arise in the following manner: The cadre strength of Civil Judges (Junior Division) was increased in the State of West Bengal from 351 judges to 375, with the approval of the Cabinet and the Finance Department of the Government of West Bengal in the year 2008. A resolution was passed by the Administrative Committee of the Calcutta High Court on 28th October, 2009 noting that there was no proper consultation with the High Court by the State Government within the meaning of Rule 8 of the West Bengal Judicial (Conditions of Service) Rules, 2004. The Committee considered the hardship which could be caused to the persons who had been appointed in breach of the provisions of the aforesaid Rule and allowed the posting of 51 candidates vide a Notification issued by the Court on 21st November, 2009. Resultantly the strength of cadre of Civil Judge (Junior Division)/Judicial Magistrate rose to 357 which was in excess of the sanctioned strength of 351. 3. Earlier in the year, adhering to the time schedule prescribed by the Supreme Court in Malik Mazhar Sultan & Anr. v. U.P. Public Service Commission & Ors reported in (2008) 17 SCC 703 for holding examinations for recruitment to the aforesaid post of judicial officers, the High Court informed the Public Service Commission, West Bengal (for short 'PSC') that there were 26 clear vacancies for the year 2009 and 37 anticipated vacancies which could arise due to death, voluntary retirement, resignation or unwillingness of the selected candidate to join service. Accordingly the PSC advertised the vacant posts on 1st February 2009. Accordingly the PSC advertised the vacant posts on 1st February 2009. The select list of 114 successful candidates was published in November 2009 and forwarded to the High Court for necessary action. The Public Service Commission recommended the names of 61 candidates for appointment in 2009; 25 candidates as Civil Judge (Junior Division) in the West Bengal Judicial Service against the 26 vacancies and 2 persons against the future vacancies as described in Malik Mazhar Sultan (supra). The Registrar (Judicial Service), High Court, Calcutta by his letter dated 27th January, 2010 to the Secretary-in-Charge (Judicial Department), Government of West Bengal, requested the State to process the appointment of 18 candidates who were successful and to keep the remaining 9 candidates on the waiting list for being considered against the vacancies that could arise due to death, voluntary retirement or resignation of the existing officers or if the selected candidates were unwilling to accept the appointment. 4. A group of 9 candidates, being aggrieved by the decision of the High Court, not to issue posting orders to them challenged the decision before this Court by filing a writ petition. This writ petition was dismissed by the learned single Judge holding that they had no right to be posted. This decision was challenged before the Division Bench in Manabendra Nath Ghosh v. The Hon'ble High Court at Calcutta & Ors., [APOT No. 260 of 2011]. The Division Bench found that apart from 26 clear vacancies and 37 anticipated vacancies notified by the High Court, 42 officers had been promoted in the year 2009 from the post of Civil Judge (Junior Division) to Civil Judge (Senior Division). As a result there were 42 more vacancies available which were required to be filled in by candidates selected in 2009. Though the Division Bench found that the Administrative Committee had erred in adjusting successful candidates in the examination held in 2008 against the vacancies available in 2009, it did not undo the error or illegality as those candidates had been holding office for more than three years. The Division Bench held that those candidates who had been issued appointment orders but were in the waiting list should be issued posting orders against the vacant posts. The Division Bench held that those candidates who had been issued appointment orders but were in the waiting list should be issued posting orders against the vacant posts. The Division Bench further held that posting orders should be issued to only those 9 persons who had challenged the administrative decision of the High Court and directed that they should be absorbed in service and posted by creating supernumerary posts, if necessary. The order of the Division Bench was challenged by the High Court before the Supreme Court by preferring Special Leave Petition (Civil) No. 27234 of 2011 [The Hon'ble High Court at Calcutta & Ors v. Manabendra Nath Ghosh & Ors]. Initially the Supreme Court issued notice and stayed the operation of the judgment of the Division Bench of the High Court. Thereafter the High Court agreed to accommodate those 9 candidates who had received appointment orders but had not been issued posting orders. On 1st April, 2013 the High Court informed the Supreme Court that the 9 candidates could be accommodated against 31 posts of Civil Judge (Junior Division) which were vacant. On 18th September, 2013 the Supreme Court disposed of the Special Leave Petition, accepting the statement of the High Court. The 9 candidates who had been issued appointment letters have thus been issued letters of posting by the High Court. 5. Writ petitions were filed in the year 2013 by several other candidates, who though successful in the examination had not been issued appointment orders. It appears that the reason for not issuing the appointment orders was that there were no vacancies available in the year 2009 to accommodate all the selected candidates. 6. The learned single Judge has dismissed the writ petitions mainly on the ground that the candidates had made no attempt to approach the Court expeditiously. It was observed by the learned single Judge that the 9 candidates who had received succour before the Supreme Court were not similarly circumstanced as the petitioners before him. The learned single Judge was of the view that the petitioners had chosen to remain quiet and were in fact sitting on the fence, waiting to ascertain the fate of the appeal in the High Court as well as the decision of the Supreme Court in respect of the challenge to the judgment of the Division Bench. The learned single Judge has thus dismissed all the writ petitions. The learned single Judge has thus dismissed all the writ petitions. Aggrieved by the decision of the learned single Judge, the selected candidates for the post of Civil Judge (Junior Division) and Judicial Magistrate have preferred the present appeals. 7. Mr. Hirak Mitra, the learned Counsel who led the arguments on behalf of the appellants, submitted that the High Court had clearly acted illegally by diverting the vacancies of the year 2009 to accommodate the candidates who were selected pursuant to the examination held in 2008. He submitted that the Division Bench had castigated the High Court's administrative decision which was not in conformity with the West Bengal Judicial (Conditions of Service) Rules, 2004. The judgment of the High Court in APOT 260 of 2011 [Manabendra Nath Ghosh and Ors v. The Hon'ble High Court at Calcutta and Ors.] decided on 12th September, 2011 had, according to Mr. Mitra, received the imprimatur of the Supreme Court when it refused to set aside the judgment. The learned Counsel criticised the judgment of the learned single Judge by contending that there was no delay in approaching the Court as the appellants' rights crystallized only after they obtained information from the High Court and the Public Service Commission under the Right to Information Act in 2012 and the decision of the Division Bench was confirmed by the Supreme Court. Therefore, according to him, there was no delay on the part of the appellants in approaching the Writ Court. Mr. Mitra urged that the learned single Judge had thus erred in concluding that the appellants' rights had evaporated because they had approached the Writ Court belatedly. The learned Counsel fortified his submissions by referring to certain judgments which we will presently advert to. 8. Mr. Pranab Dutta, the learned Counsel appearing for the State, has supported the judgment of the learned single Judge by referring to the judgments of U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr reported in (2006) 11 SCC 464 and Brijesh Kumar and ors. v. State of Haryana & Ors. reported in (2014) 11 SCC 351 . He submitted that the appellants were well aware of the fact that 9 others had approached the Division Bench of this Court in 2011 itself, but they failed to exercise their rights likewise. v. State of Haryana & Ors. reported in (2014) 11 SCC 351 . He submitted that the appellants were well aware of the fact that 9 others had approached the Division Bench of this Court in 2011 itself, but they failed to exercise their rights likewise. The learned Counsel further submitted that the appellants had no right to appointment; they were merely successful candidates who were empaneled and who were not issued appointment orders. The learned Counsel submits that the empanelment of a candidate cannot give rise to a right to be appointed. 9. The learned Counsel appearing for the High Court argued that the appellants here and those who were issued posting orders while the High Court's appeal was pending before the Supreme Court were not similarly circumstanced. He drove home this point by drawing our attention to the fact that while 9 candidates were in receipt of the appointment orders, no posting orders had been issued by the High Court to them. This was because the vacancies were inadequate. The learned Counsel submitted that with the passage of time vacancies came into existence and therefore it was possible to accommodate those 9 persons. The learned Counsel further submitted that though the appellants were successful candidates in the examination held in the year 2009, no appointment orders had been issued to them, therefore, the question of issuing posting orders to them did not arise. 10. We have given our anxious consideration to the dispute before us. On sifting through the material before us, there is no doubt that grave injustice has been done to the successful candidates who appeared in the examination held in the year 2009 for the post of Civil Judge (Junior Division)/Judicial Magistrate by the Public Service Commission. The Supreme Court, in the judgment of Malik Mazhar Sultan (supra) prescribed a time schedule which was required to be followed by all High Courts in the country for filling up the vacancies in sub-ordinate Courts. The number of vacancies for appointment to the post of Civil Judge (Junior Division) by direct recruitment have to be notified by the High Court by 15th January of each year. The vacancies are to be calculated by including the existing vacancies and those which could arise within a year due to retirement or promotion or death or otherwise. The number of vacancies for appointment to the post of Civil Judge (Junior Division) by direct recruitment have to be notified by the High Court by 15th January of each year. The vacancies are to be calculated by including the existing vacancies and those which could arise within a year due to retirement or promotion or death or otherwise. After advertising the posts and inviting applications from eligible candidates, the preliminary written examination is to be held by 15th May of each year. The results of the preliminary written examination are to be declared by 15th June. The final written examination is to be held one month later and the results of that examination are to be declared on 30th August of each year. After a viva voce the final select list is to be prepared and communicated to the appointing authority. 11. In the year 2008 there was a cadre strength of 351 in the category of Civil Judge (Junior Division)/Judicial Magistrate, 49 anticipated vacancies were available. Appointment orders were issued by the Government on 4th December, 2009 to 51 candidates. This was communicated to the High Court. The Administrative Committee of the High Court by its resolution dated 28th October, 2009 noted that there had been no proper consultation with the High Court within the meaning of Rule 8 of the West Bengal Judicial (Conditions of Service) Rules, 2004. That observation was communicated to the State Government. However, the Administrative Committee resolved that considering the hardship which would be faced by those who had been issued appointment letters if the entire process was to be restarted, granted posting orders to 51 candidates raising the cadre strength to 375 which was in excess of the sanctioned strength. As there were excess candidates of the year 2008, the vacancies were diverted from the year 2009. Fifty one candidates who had been selected in the year 2008 were adjusted against those vacancies and issued appointment orders and posted. 12. It was argued on behalf of the appellants that their right to approach this Court arose only when the fact of diversion of vacancies was disclosed in the judgment of the High Court rendered in 2011. Fifty one candidates who had been selected in the year 2008 were adjusted against those vacancies and issued appointment orders and posted. 12. It was argued on behalf of the appellants that their right to approach this Court arose only when the fact of diversion of vacancies was disclosed in the judgment of the High Court rendered in 2011. Thereafter the petitioners were informed that the judgment of the High Court had been challenged in the Supreme Court and therefore according to them it would have been futile to approach the Court immediately after the decision of the Division Bench. According to the appellants it was only because the Supreme Court had decided in favour of 9 candidates that their case was strengthened and their rights were crystallised. It is the case of the appellants that the learned single Judge has erred in concluding that the writ petition was not maintainable because of delay and laches. 13. We are unable to accept the submissions of Mr. Mitra, learned Counsel appearing for the appellants. It is true that the Administrative Committee of the High Court was not right in diverting the vacancies of one year to another. The Division Bench in Manabendra Nath Ghosh (supra) has criticised the decision of the Administrative Committee of the Court. Delay in approaching the Court should not normally affect the ends of justice if reasonable cause for the delay is demonstrated. In the present case the appellants were well-aware of the judgment of the Division Bench which was delivered on 12.09.2011. Therefore, they could have approached this Court even at that stage. However they chose to wait till the year 2013 to challenge the decision of the High Court in not issuing appointment orders to them, for no satisfactory explicable reason. 14. Now let us consider whether the appellants have any right to the relief claimed even on merits. It has been argued by the learned Counsel for the appellants that Rule 9 of the West Bengal Judicial (Conditions of Service) Rules, 2004 makes it mandatory for each candidate who had been selected to be appointed to the available vacant posts in the order in which their names were appeared in the merit list. It was argued that since the petitioners' names were notified in the select list they had a right to be appointed irrespective of whether they had approached the Court belatedly. It was argued that since the petitioners' names were notified in the select list they had a right to be appointed irrespective of whether they had approached the Court belatedly. According to the appellants, had there been no diversion of vacancies to the year 2009 when they appeared for the examination, they would have been appointed to the post and posting orders would also have been issued to them. It was urged that the appellants had a legitimate expectation to be appointed once their names were included in the select list. 15. These arguments on behalf of the appellants are untenable. Rule 9 prescribes that the Public Service Commission shall, on the basis of the examination conducted, forward to the Government a list of qualified candidates in order of merit. This list is to be published. Sub-Rule (2) of Rule 9 provides that each candidate shall be considered for appointment in the available post subject to other provisions of Rules. The words used in Sub-Rule (2) are "shall be considered for appointment" and not "shall be appointed". There is no mandate contained in the Rules that every selected candidate has to be necessarily appointed. Obviously such appointments can be made only against the available vacancies. Therefore, the legitimate expectations of the appellants were and are unfounded. 16. Mr. Joydeep Kar, the learned Counsel appearing for the appellant in AST 38 of 2014, while adopting the arguments of Mr. Mitra, relied on the judgments of the Supreme Court in the case of Shankarsan Dash v. Union of India reported in (1991) 3 SCC 47 and East Coast Railway & Anr v. Mahadev Appa Rao & Ors. reported in (2010) 7 SCC 678 in support of his submission that the State or the High Court cannot act in an arbitrary manner by not filling in the available vacancies when successful candidates are available. In the aforementioned judgments the Supreme Court has pronounced that while the State is under no legal duty to fill up all or any of the vacancies available, the State has no licence to act in an arbitrary manner. The decision to not fill in the vacancies must be taken in a bona fide manner for appropriate reasons cautioned the Supreme Court. The observations in Shankarsan Dash (supra) have been reiterated in East Coast Railway (supra). The decision to not fill in the vacancies must be taken in a bona fide manner for appropriate reasons cautioned the Supreme Court. The observations in Shankarsan Dash (supra) have been reiterated in East Coast Railway (supra). The Court has held that the State's decision not to appoint persons in the existing vacancies is not beyond the pale of judicial review before a competent Writ Court. Mr. Kar submitted that the action of the Administrative Committee of the High Court in diverting the appointment of the successful candidates of the year 2008 to the vacancies declared for the year 2009 was arbitrary and contrary to the settled principles of law. He submitted that by diverting the vacancies of one year to another, grave injustice had been caused to the appellants. 17. Although the reliance placed by Mr. Kar on the aforesaid judgments cannot be faulted, his arguments are of no consequence for the appellant whom he represents as she has not been declared successful in the examination. Therefore, his client can have no right whatsoever to challenge the diversion or indeed to claim that had there been no diversion she would have certainly secured an appointment order. 18. Mr. Hirak Mitra, learned Counsel appearing for one of the appellants, relied on the judgments in Rakhi Ray & Ors v. High Court of Delhi & Ors reported in (2010) 2 SCC 637 to fortify his submissions. The Supreme Court has held in the aforesaid judgment that it was a settled legal proposition that vacancies cannot be filled in, in excess of the number of vacancies advertised as that would amount to an infringement of the constitutional right under Article 14 read with Article 16(1) of the Constitution of those persons who had acquired eligibility for the post in accordance with the statutory rules subsequent to the date of notification of the vacancies. Mr. Mitra submitted that by filling in the vacancies of 2009 with the candidates of 2008 the State and the High Court had flouted the settled legal principles and consequently the rights of the appellants under Articles 14 and 16(1) of the Constitution had been violated. Mr. Mitra further submitted that the High Court as well as the State had acted irresponsibly by regularising irregular appointments which were made with scant regard for the rules framed under Article 309. He relied on the judgment in the case of Dr. Mr. Mitra further submitted that the High Court as well as the State had acted irresponsibly by regularising irregular appointments which were made with scant regard for the rules framed under Article 309. He relied on the judgment in the case of Dr. M.A. Haque & Ors v. Union of India & Ors reported in (1993) 2 SCC 213 . The proposition of law enunciated in the aforesaid judgments has been considered by the Division Bench in the case of Manabendra Nath Ghosh (supra) and relief has been accorded to the appellants in that case. However, in the present case though the diversion of the vacancies was no doubt illegal, it is too late to seek a declaration that those who are appointed by observing a wrong practise, should be ousted from their jobs. The next submission of Mr. Mitra was that even if those persons are allowed to remain despite their irregular appointments, relief can be granted to the appellants as they are all successful candidates and similarly circumstanced as the 9 persons who were granted relief. He urged that if the High Court had acceded to their request, a similar view should be adopted for the appellants. 19. We have already noted that the vacancies which were available for the year 2009 have been filled up by successful candidates. The appellants therefore cannot after so many years contend that supernumerary posts should be created for them so that they can be accommodated in those posts. Though the appellants were successful candidates they are not necessarily entitled to be appointed. The 9 candidates who were issued posting orders by the High Court as late as in 2013 had been issued appointment orders. It was only because the appointment orders had been issued that the Supreme Court requested the High Court to rectify the situation and issue posting orders. The appellants are not similarly circumstanced as those 9 candidates at all. 20. The argument that had there been no diversion the appellants would all have been appointed is again, in our opinion, a matter of conjecture. 21. Assuming for the sake of argument that there was no delay or laches on the part of the appellants, even on merits they are not entitled to any relief. The appellants' names do not appear immediately after those who have been appointed in the list of candidates recommended by the Public Service Commission. 21. Assuming for the sake of argument that there was no delay or laches on the part of the appellants, even on merits they are not entitled to any relief. The appellants' names do not appear immediately after those who have been appointed in the list of candidates recommended by the Public Service Commission. 22. For the sake of convenience we are setting out the appeal numbers with the corresponding names of the appellants and the ranks obtained by each of them in the select list. Appeal No. Rank Name FMA 4440 of 2014 35th Subrata Roy FMA 4420 of 2014 37th Sukesh Kumar Mishra FMA 4417 of 2014 40th Kaushik Pradhan FMA 4416 of 2014 41st Rivu Dutta FMA 169 of 2015 44th Susmita Dhar FMA 4439 of 2014 48th Moumita Choudhury FMA 4422 of 2014 97th Salil Sarkar FMA 4441 of 2014 98th Biswadeep Roy 23. As already mentioned the appellants in AST 38 of 2014, FMA 4418 of 2014, AST 46 of 2014 and AST 47 of 2014 have not been recommended for appointment at all. Therefore, they are not entitled to any relief. 24. Appellants in FMA 4420 of 2014 and FMA 169 of 2015, namely, Sukesh Kumar Mishra and Susmita Dhar who are 37th and 44th in the select list respectively, are over-age today, although when they appeared for the examination they were within the prescribed age limit. Candidates ranked 28th, 33rd and 34th, i.e., Nilanjana Banerjee, Krishnakoli Mukherjee and Nichita Guha respectively have been appointed as Judges as they appeared in a subsequent recruitment process. We are informed that the person who is 30th in the select list, i.e., Shantadeb Banerejee is not interested in the appointment. However, it appears to us that the most meritorious candidate amongst the appellants before us, namely, Surata Roy, ranks 35th in the select list. Only 25 clear vacancies were available in the year 2009 and accordingly, those vacancies have been filled. The remaining 36 candidates who were selected and recommended included the appellants in Appeal FMA Nos. 4416, 4417, 4420, 4422, 4439, 4440, 4441 of 2014 & 169 of 2015. According to the appellants, all of them could have been accommodated. This submission of the appellants is not tenable. There were several candidates who were more meritorious than them in the select list. The appellants did not fall within the zone of consideration. 4416, 4417, 4420, 4422, 4439, 4440, 4441 of 2014 & 169 of 2015. According to the appellants, all of them could have been accommodated. This submission of the appellants is not tenable. There were several candidates who were more meritorious than them in the select list. The appellants did not fall within the zone of consideration. Therefore they are not entitled to any relief in these appeals. The learned single Judge, in our opinion, has committed no error in denying relief to the appellants. 25. As a last resort the learned Counsel for the appellants submitted that the appellants should all be appointed against the vacancies which will arise for the year 2016, so that all of them can be accommodated. According to the learned Counsel, this is the only way that the High Court on its administrative side could redeem itself, having acted illegally in 2008-09. 26. The submission of the learned Counsel, in our opinion, is fallacious. This very procedure adopted by the High Court of accommodating the successful candidates of one year in the following year has been denounced with great vehemence by the learned Counsel for the appellants. Yet surprisingly they seek the same relief for the appellants. We are not inclined to accept this submission made on behalf of the appellants especially since the Division Bench in the case of Manabendra Nath Ghosh (supra) has criticized the High Court on its administrative side for adopting such a procedure. We will, therefore, not support any illegality as suggested on behalf of the appellants. 27. The appeals are dismissed. 28. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities. Asha Arora, J. - I agree.